Chrysafis v. Marks

• Citation: 15 F.4th 208
• Decision Date: 29 September 2021
• Docket Number: August Term 2021,Docket No. 21-1493
• Parties: Pantelis CHRYSAFIS, Betty S. Cohen, Brandie Lacasse, Mudan Shi, Feng Zhou, Plaintiffs-Appellants, v. Lawrence K. MARKS, in his official capacity as Chief Administrative Judge of the Courts of New York State, Adrian H. Anderson, in his official capacity as Sheriff of Dutchess County, New York, James Dzurenda, in his official capacity as Sheriff of Nassau County, New York, Joseph Fucito, in his official capacity as Sheriff of New York City, New York, Margaret Garnett, in her official capacity as Commissioner of New York City Department of Investigation, Caroline Tang-Alejandro, in her official capacity as Director, Bureau of Marshals, New York City Department of Investigation, Defendants - Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

15 F.4th 208

Pantelis CHRYSAFIS, Betty S. Cohen, Brandie Lacasse, Mudan Shi, Feng Zhou, Plaintiffs-Appellants,

v.Lawrence K. MARKS, in his official capacity as Chief Administrative Judge of the Courts of New York State, Adrian H. Anderson, in his official capacity as Sheriff of Dutchess County, New York, James Dzurenda, in his official capacity as Sheriff of Nassau County, New York, Joseph Fucito, in his official capacity as Sheriff of New York City, New York, Margaret Garnett, in her official capacity as Commissioner of New York City Department of Investigation, Caroline Tang-Alejandro, in her official capacity as Director, Bureau of Marshals, New York City Department of Investigation, Defendants - Appellees.¹

Docket No. 21-1493

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: September 21, 2021

Decided: September 29, 2021

Randy M. Mastro, New York, NY (Akiva Shapiro, Jessica Benvenisty, William J. Moccia, Lauren Myers, Gibson, Dunn & Crutcher LLP, New York, NY, on the brief), for Plaintiffs-Appellants Pantelis Chrysafis, Betty S. Cohen, Brandie LaCasse, Mudan Shi, Feng Zhou, and Rent Stabilization Association of N.Y.C., Inc.

Steven C. Wu, Deputy Solicitor General, New York, NY (Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Judith N. Vale, Assistant Deputy Solicitor General, Linda Fang, Assistant Solicitor General of Counsel, New York State Office of the Attorney General, New York, NY, on the brief), for Defendant-Appellee Lawrence K. Marks.

(Edward Josephson, Roland Nimis, Legal Services NYC, New York, NY, Judith Goldiner, Ellen Davidson, Amber Marshall, The Legal Aid Society, New York, NY, for amicus curiae Housing Court Answers and Make the Road NY, in support of Defendants-Appellees.)

Before: NEWMAN, CABRANES, and WESLEY, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal concerns a challenge to Part A ("Part A 2020") of New York's residential eviction moratorium statute, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 ("CEEFPA"), 2020 N.Y. Laws Ch. 381, and an attempt to challenge the new residential eviction moratorium, which is Subpart A of Part C ("Subpart C(A) 2021") of 2021 N.Y. Laws Ch. 417 (S50001), enacted on Sept. 1, 2021, after several provisions of the old moratorium statute expired on Aug. 31, 2021. Part A 2020, § 13. Plaintiffs-Appellants Pantelis Chrysafis and four other landlords ("Landlords") appeal from the June 14, 2021, judgment of the United States District Court for the Eastern District of New York (Gary R. Brown, District Judge), dismissing, after a hearing, their complaint against Defendants-Appellees Lawrence K. Marks, in his official capacity as Chief Administrative Judge of the Courts of New York State and other public officials ("State Officials").² Chrysafis v. Marks , No. 21-cv-2516 (GRB), 2021 WL 2405802 (E.D.N.Y. June 11, 2021) (" Chrysafis Dist. Ct. "). The Landlords also appeal from the District Court's June 11, 2021, order, denying their motion for a preliminary injunction.

The principal issue is whether the Landlords’ due process claims are moot, an issue that turns primarily on whether the new statute remedies the defect in the expired provisions of the old statute that the Supreme Court identified when the Court enjoined enforcement of Part A 2020 of the earlier statute, Chrysafis v. Marks , No. 21A8, ––– U.S. ––––, 141 S.Ct. 2482, ––– L.Ed.2d ––––, (Aug. 12, 2021) (" Chrysafis U.S. ").³

The pending challenge has two procedural components, as a result of the parties’ conflicting claims. The Landlords ask us to enjoin enforcement of Subpart C(A) 2021 on the ground that it does not remedy the defect in Part A 2020 of CEEFPA, but is merely a continuation of the previous statute, which, they contend, remains subject to the Supreme Court's injunction. Second, The State Officials ask us to dismiss the appeal as moot primarily on the grounds that the challenged provisions of the old statute have expired, Subpart C(A) 2021 does remedy the defect in that statute identified by the Supreme Court, and any challenge to the new provisions of the new statute must be brought in a new lawsuit in the District Court.

We conclude that Plaintiffs’ due process claims are moot, that we should dismiss them, and, as explained below, that we should remand the entire case to the District Court. With the appeal remanded, we lack jurisdiction to enjoin enforcement of Subpart C(A) 2021 of the new statute and therefore deny the motion to enjoin its enforcement. However, clearly in this case the "mootness is attributable to a change in the legal framework," Lewis v. Continental Bank Corp ., 494 U.S. 472, 482, 110 S.Ct. 1249, 108 L.Ed.2d 400, (1990), and Plaintiffs "may wish to amend their complaint so as to demonstrate that the repealed statute retains some continuing force or to attack the newly enacted legislation," Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc. , 404 U.S. 412, 415, 92 S.Ct. 574, 30 L.Ed.2d 567, (1972). We therefore vacate the judgment of the District Court and remand the case to the District Court with leave for the Plaintiffs to amend their pleadings and assert claims challenging the new statute. See id. ; Continental Bank Corp ., 494 U.S. at 482, 110 S.Ct. 1249, Lamar Advertising of Penn, LLC v. Town of Orchard Park, New York , 356 F.3d 365, 379–80 (2d Cir. 2004).

Background

CEEFPA was enacted on Dec. 28, 2020. The Landlords filed their complaint on May 6, 2021 (all dates hereafter are to 2021). The complaint alleged that Part A 2020 of CEEFPA (1) violated their First Amendment rights by compelling them to distribute to tenants forms for a declaration of hardship, (2) was unconstitutionally vague because the categories of hardship were ill-defined, (3) violated their right to procedural due process because they lacked an opportunity to dispute a hardship declaration and (4) violated their First Amendment right to petition by prohibiting the filing of eviction proceedings until Aug. 31. The Plaintiffs-Appellants sought a preliminary injunction on May 7.

The District Court held a hearing on the request for an injunction on June 1. Thereafter the parties essentially accepted the Court's suggestion that the injunction request could be combined with the merits, and agreed that the June 1 hearing record sufficed for a merits decision.

On June 11, the District Court filed an opinion denying the Landlords’ motion for a preliminary injunction to prevent enforcement of Part A 2020 and ordering that judgment enter in favor of the Defendants-Appellants. Chrysafis Dist. Ct. Judgment was entered on June 14. On the same day, the Landlords sought an injunction pending appeal, which the District Court denied on June 16. After filing a notice of appeal, the Landlords, on June 18, sought from this Court an order expediting the appeal and an injunction pending appeal to prevent enforcement of the COVID-19 Emergency Eviction Moratorium Act of 2020. On June 26, this Court denied the motion for an injunction pending appeal.

On August 12, the Supreme Court enjoined enforcement of Part A 2020. Chrysafis U.S.

Although the motion to expedite the appeal in this Court was not formally ruled on, counsel were notified on August 30 that the appeal would be heard on September 21.

On August 31, Part A 2020 expired pursuant to the terms of CEEFPA § 13. On September 1, the New York legislature enacted a new eviction moratorium statute, 2021 New York Laws Ch. 417 (S50001). Subpart C(A) 2021 of the new statute contains some language from the expired portions of Part A 2020 of the old statute and some new language not contained in the old statute.

On September 9, the Landlords filed in this Court a motion to enjoin enforcement of Subpart C(A) 2021. After hearing the appeal on September 21, we reserved decision on both the appeal and the Landlords’ motion to enjoin enforcement of Subpart C(A) 2021.

Discussion

We begin our consideration of the two claims before us by focusing on what the Supreme Court wrote when it issued the injunction pending appeal. The Court explained its ruling as follows: "If a tenant self-certifies financial hardship, Part A of CEEFPA generally precludes a landlord from contesting that certification and denies the landlord a hearing." Chrysafis U.S. , ––– U.S. at ––––, 141 S.Ct. 2482. "This scheme," the Court concluded, was not "consistent with the Due Process Clause." Id .⁴

The issue that the parties primarily contest on this appeal is whether the new language in Subpart C(A) 2021 that S50001 added to the moratorium statute, remedies the due process violation identified by the Supreme Court.⁵ Under CEEFPA, Part A 2020, once a tenant filed a "declaration of hardship" indicating an inability to pay rent,⁶ the housing court was prohibited from initiating an eviction proceeding against the tenant and required to stay any pending eviction proceedings. Under S50001, after a tenant files a hardship declaration, Subpart C(A) 2021 provides that a landlord may file an affidavit attesting that the landlord "believes in good faith that the hardship certified in the hardship declaration does not exist." Subpart C(A) 2021 § 3(1)(c). Subpart C(A) 2021 also provides that a tenant must be given a notice stating, in capital letters, the following:

IF YOUR LANDLORD MOVES TO CHALLENGE YOUR HARDSHIP CLAIM, YOU ARE ENTITLED TO A HEARING. IF THE COURT RULES YOUR HARDSHIP CLAIM INVALID AFTER THE HEARING, THE LAWSUIT MAY PROCEED TOWARD POSSIBLE EVICTION, BUT UNLESS AND UNTIL THE COURT ISSUES AN EVICTION WARRANT AGAINST YOU, YOU MAY NOT BE EVICTED.

Id . § 2. Subpart C(A) 2021 also provides that:

Notwithstanding any other provision of this act, a stay under this act shall be granted or continued unless the court finds the respondent's hardship claim invalid. A motion may be made by the petitioner, attesting a good faith belief that the respondent has not experienced a hardship, with notice to the respondent, and the court shall grant a hearing

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